Telulah Paper Co. v. Patten Paper Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: TIMLIN
• Citation: Telulah Paper Co. v. Patten Paper Co., 132 Wis. 425, 112 N.W. 522 (Wis. 1907)
• Decision Date: 20 June 1907
• Parties: TELULAH PAPER CO. v. PATTEN PAPER CO., LIMITED.

132 Wis. 425

112 N.W. 522

TELULAH PAPER CO.

v.PATTEN PAPER CO., LIMITED.

Supreme Court of Wisconsin.

June 20, 1907.

Appeal from Circuit Court. Fond du Lac County; Chester A. Fowler, Judge.

Action by the Telulah Paper Company against the Patten Paper Company, Limited. From an order overruling a demurrer to the counterclaim, and also overruling a demurrer to a portion of defendant's answer designated in the demurrer as a plea in abatement, plaintiff appeals. Order modified, and, as modified, affirmed.Hooper & Hooper, for appellant.

Greene, Fairchild, North & Parker (Geo. G. Greene, of counsel), for respondent.

TIMLIN, J.

The demurrer to the counterclaim is upon the ground that the cause of action stated is not pleadable as a counterclaim, and it was conceded that therein a cause of action in favor of the defendant and against the plaintiff is stated, but it is argued, one not “connected with the subject of the action.” The complaint shows that August 27, 1864, Edward West, then the owner of the water power described, conveyed to one Woodward a parcel of contiguous land, “said premises embracing 15 feet of the south end of the bulkhead together with the privilege of drawing from said bulkhead as much water as Woodward, his heirs or assigns, may need for whatever machinery may be erected on said premises.” It is averred that the proper construction and measure of the aforesaid grant of parcel of said water power is not to exceed 6,480 cubic feet of water per minute. The defendant succeeded to and is the owner of the rights of Woodward, and under a wrongful claim founded thereon is drawing and using a much larger volume of water. West thereafter, and before June 18, 1887, conveyed different parcels of said water power to other persons and to defendant, and on the date last mentioned conveyed the remainder of said water power, with all his then interest in the dams and canals maintaining and furnishing said water power, to the plaintiff's grantor, who conveyed to plaintiff, who now owns and holds the same. Plaintiff has mills in operation which require the use of all the remainder of such water power, and the plaintiff's residue of the water power is diminished, to plaintiff's damage and injury, by said excessive use on the part of defendant.

A second cause of action avers, among other things, a grant by West October 20, 1879, to one Flemming of so much water as not to exceed 200 horse power, on July 16, 1881, to one Patten of water to the amount of 400 horse power, both of which rights came to and are owned by defendant. On February 26, 1882, there was a grant by West to defendant of water to the amount of 100 horse power. Under these grants the defendant has been and is drawing and using a much larger volume of water than sufficient to furnish 700 horse power, thereby also diminishing the plaintiff's residue of the water to the plaintiff's damage and injury. Relief demanded is that the volume of water which the defendant is entitled to use be adjudged, that defendant be enjoined from drawing or using more, and that the plaintiff have damages or compensation for the past excessive use by defendant. The counterclaim described the water power as produced from a millpond held by a dam across the north channel and a bulkhead across the south channel of Fox river, and a canal from that point extending down through Grand Chute Island about 1,600 feet. It then avers a grant January 1, 1859, by West to one McCaughey of 120 horse power, the grant to Woodward mentioned in the complaint, a grant December 23, 1867, by West to Jerrard et al., 30 horse power, a grant April 15, 1869, by West to Tibbits 75 horse power, in all 675 horse power, and the water necessary to produce this horse power must be taken from the said pond and discharged into the south channel, and all these grants are now owned and held by defendant. It requires 28,000 cubic feet of water per minute to produce the 450 horse power which defendant is entitled to under the Woodward grant. Since 1882 defendant acquired and owns the grants aggregating 700 horse power described in the complaint, but of this horse power it needs not more than 600 horse power, and the counterclaim states the volume of water necessary to produce this. It is then averred that on April 5, 1870, West conveyed to the Appleton Iron Company a tract of land at the lower end of said canal with a grant of water power which is equal to 372 horse power, and which was necessarily discharged into the north channel. After the conveyance of June 18, 1887, under which plaintiff claims and which is referred to in the complaint, the use of water power on the tract conveyed to the Appleton Iron Company was discontinued. The plaintiff, however, having only these two grants or rights, namely, that secured under the grant of the residue June, 18, 1887, and that formerly held by the Appleton Iron Company, discharges all its waste water from its mills into the south channel. Besides said grants, West had granted 270 horse power to other persons, 160 horse power of which was prior to defendant's grants. Prior to June 18, 1887, the total grants by West aggregated 2,000 horse power. The flow of the river is more than sufficient to fill all the grants of power owned by defendant at the bulkhead and the 160 horse power aforesaid prior to defendant's grants, but except in very high water is and ever has been insufficient to fill all the grants by West made prior to June 18, 1887, and the plaintiff draws and uses water in excess of what it is entitled to, thus depriving the defendant of power both at the bulkhead and on the canal. Using the water power granted to the Appleton Iron Company (which, as we have seen, was 372 horse power, and was prior to two or three of the grants under which defendant claims) at the place where plaintiff uses it requires more water to produce the 372 horse power than if it were used at the place specified or required by the grant to the Appleton Iron Company, and so diminishes to that extent wrongfully the volume of water to which defendant is entitled. And further discharging the water into the south channel, as plaintiff does, instead of into the north channel as required by the Appleton Iron Company's grant, raises and sets back the water in the south channel, and so diminishes defendant's head of water at the bulkhead and so requires the use of a much greater volume of water by defendant to produce the power to which it is entitled by grant if conditions were such that it could produce that power, but this condition also prevents defendant from using its full power to which it is entitled. These conditions are alleged to have existed to defendant's damage and injury which is continuous or constantly recurring. Upon this counterclaim the defendant asks practically the same relief against the plaintiff as the plaintiff does against defendant.

The question of the sufficiency of the second count in the complaint as against this demurrer was not argued, and we will assume, as counsel did in their briefs and arguments, that each count of the complaint states a good cause of action, and, as the demurrer does, that the only question is whether or not the cause of action in defendant's answer is pleadable as a counterclaim. Nor do we find it necessary to determine whether the equitable cognizance of this action is to be upheld under the quia timet jurisdiction of that court, or under the inadequacy of legal remedy which is the basis of the jurisdiction in partition, for both parties are in equity appealing to the remedies of that court, and not questioning its jurisdiction. But, considering the controversy from the broader viewpoint of a “civil action,” are there any facts averred in the counterclaim which connect it with the subject of plaintiff's action? The subject of plaintiff's action is his right and the invasion of that right by the defendant. In Mulberger v. Koenig, 62 Wis. 558, 22 N. W. 745, it was said: “The subject of the action is nothing more or less than the facts constituting the plaintiffs' cause of action.” In Grignon et al. v. Black, 76 Wis. 674, 45 N. W. 122, 938, a suit to enjoin the defendant from committing waste on certain premises in which there was a counterclaim on the part of the defendant in possession to quiet his title to the same premises, the court said: “The subject of the action of the plaintiffs in this case, as stated in their complaint, is their title and right of possession to the land in question; and the defendant's counterclaim sets up the same subject of the action, viz., the title and possession to the same land.” There is nothing inconsistent in these expressions. The last merely falls short of a complete definition. A cause of action is inconceivable separately from the rights which it invades, and a legal right is inconceivable separately from possible infractions of that right. A legal right or title in this aspect is the privilege found...